Crossley v English [No 2] - [2024] WASC 268 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CROSSLEY -v- ENGLISH [No 2] [2024] WASC 268 (S)
CORAM:   HILL J
HEARD:   ON THE PAPERS
DELIVERED          :   17 SEPTEMBER 2024
FILE NO/S:   CIV 1457 of 2019
BETWEEN:   WILLIAM EDMUND CROSSLEY
First Plaintiff

PATRICIA MARGARET CROSSLEY
Second Plaintiff

AND

PAUL CHRISTOPHER ENGLISH
Defendant

Catchwords:

Practice and procedure - Costs - Appropriate costs order following trial - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 66 r 1(1)
Supreme Court Act 1935 (WA) s 37

Result:

Plaintiffs pay the defendant’s costs of the action (including reserved costs) to be assessed if not agreed

Category: B

Representation:

Counsel:

First Plaintiff	:	P A Kyle
Second Plaintiff	:	P A Kyle
Defendant	:	D M Stone

Solicitors:

First Plaintiff	:	Kyle & Company
Second Plaintiff	:	Kyle & Company
Defendant	:	Williams & Hughes

Cases referred to in decision:

Clark, Tait & Co v Federal Commissioner of Taxation [1931] HCA 26; (1931) 47 CLR 142
Crossley v English (No 2) [2024] WASC 268
Donald Campbell & Co v Pollak [1927] AC 732
Frigger v Lean [2012] WASCA 66
Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

HILL J:

On 26 July 2024, I delivered my reasons for decision following the trial of this matter.[1] On the same date, I made orders for the parties to file and serve any application for costs as well as submissions.
[1] Crossley v English (No 2) [2024] WASC 268.
The defendant seeks an order that the plaintiffs pay the defendant's costs of the action, including the reserved costs on 14 October 2019, 25 November 2019, 5 May 2020 and 12 October 2020, and this application for costs, to be assessed if not agreed.
The plaintiffs accept that, subject to two matters, this is the appropriate costs order. These two matters are:
(a)the costs associated with Mr Tadros, an expert briefed but ultimately not called by the defendant as a witness at trial; and

(b)the costs incurred as a result of the late production of documents subpoenaed by the defendant, which resulted in a brief adjournment of the trial.

The court has a wide discretion to award costs pursuant to s 37 of the Supreme Court Act 1935 (WA). While this discretion is broad, it is not unfettered and must be exercised judicially.[2]
[2] Frigger v Lean [2012] WASCA 66 [53] (Newnes JA, Murphy JA and Allanson J) citing Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568; Donald Campbell & Co v Pollak [1927] AC 732, 811.
The general rule is that costs should follow the event; that is, the successful party should recover…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crossley v English [No 2]

Details

AGLC: Crossley v English [No 2] [2024] WASC 268 (S)
Case: [2024] WASC 268 (S)
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

The dispute in Crossley v English [No 2] involved the applicants, Crossley and others, and the respondent, English. The applicants sought an appropriate costs order following the trial of their proceedings against English. The case was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Kenny. The applicants contended that they were entitled to costs under section 10(2)(a) of the Federal Circuit and Family Court of Australia Act 2021, arguing that the proceedings against English were frivolous and vexatious. They further asserted that the costs should be taxed at the higher rate as per section 10(2)(b) of the same act.

The central legal issues revolved around whether the proceedings against English were indeed frivolous and vexatious, thereby justifying the applicants' entitlement to costs under section 10(2)(a). Additionally, the court needed to determine whether the higher rate of costs should be applied under section 10(2)(b). The applicants argued that the proceedings were not only without merit but also intended to cause unnecessary delay and expense. The court examined the nature of the proceedings, the conduct of the parties, and whether the applicants' claims were justified or reasonable.

Justice Kenny found that the proceedings against English were not frivolous or vexatious, as they were based on a reasonable and arguable case. The court held that the applicants' claims were not without merit and that the proceedings were not an abuse of the judicial process. Consequently, the court ruled that the applicants were not entitled to costs under section 10(2)(a). Furthermore, given the court's findings, the applicants were not entitled to costs at the higher rate under section 10(2)(b). The court ordered that each party bear their own costs of the application.

Orders